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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

 

Patricia J. Smith, individually : 

and as Administrator of the Estate 

of William Art Smith, deceased, : Case No. 2:12-cv-616 

 Plaintiff, : JUDGE EDMUND A. SARGUS, JR. 

 

 v. : MAGISTRATE JUDGE KEMP 

 

United States of America, et al., : 

 

 Defendants. : 

 

AGREED PROTECTIVE ORDER 

In November 2013, Plaintiff Patricia J. Smith issued requests for 

production under Fed. R. Civ. P. 34 that seek information protected by the 

Privacy Act of 1974, 5 U.S.C. § 552a; the Health Insurance Portability and 

Privacy Act (HIPAA), 42 USC § 1320d, et. seq., or considered proprietary 

technical information by the United States Department of Veterans Affairs. To 

permit the Plaintiff to discover the information requested, it is hereby 

ORDERED under 5 U.S.C. § 552(a)(b)(11) and 45 C.F.R. § 164.512(e), and 

Federal Rule of Civil Procedure 26(c) that the United States may disclose to 

Plaintiff’s counsel information protected under the Privacy Act or HIPAA 

without the consent of individuals who are not party to this case, or that is 

considered proprietary by the VA. That information includes: (1) the VA’s 

provider profile, credentialing & privileging files, and VA board meeting 

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minutes regarding Dr. Martha Brogan, who was an employee of the VA’s 

independent contractor Columbus Radiology during the events alleged in this 

action; (2) information regarding employees of Columbus Radiology and other 

entities and persons that are contained in the documents disclosed, except the 

United States will redact before disclosure to Plaintiff’s counsel the full names 

of providers other than Dr. Martha Brogan that appear in VA board meeting 

minutes; (3) information relating to images, reports, and conditions of patients 

other than William Arthur Smith found in the documents to be disclosed, so 

long as the redactions in paragraph (D) below are made before disclosure to 

Plaintiff’s counsel; and (4) proprietary information on VA software programs or 

equipment. 

This Order does not cover information on William Arthur Smith or Patricia 

J. Smith’s administrative information in William Arthur Smith’s medical 

records. That information may be disclosed by the United States absent this 

Order because the Plaintiff’s counsel has requested the information from the 

United States or will be relied upon by the United States in its defense, and 

the Plaintiff consents to its production and use for this litigation. 

In the response to the discovery requests or by letter to Plaintiff’s counsel, 

the United States will designate the documents or files that contain 

confidential information produced under the Agreed Protective Order. Except 

as otherwise ordered by this Court, the disclosure of that information is 

subject to the following conditions: 

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A. Plaintiff’s counsel shall use the disclosed information only to litigate 

this action, including any subsequent appeals, and shall not disclose it to the 

public or to any other person or entity for any reason other than to litigate this 

action. 

B. Disclosure may be made only to the following persons: (i) parties and 

counsel for the parties in this action; (ii) partners, associates, secretaries, 

paralegal assistants, and employees of counsel who are litigating this action, to 

the extent reasonably necessary to render professional services in this action; 

(iii) persons retained by the parties or their counsel to assist in discovery, 

preparation for any hearing, or to serve as expert witnesses, provided that 

such disclosure is reasonably and in good faith calculated to aid in litigating 

this action; (iv) at any hearing, provided that such disclosure is reasonably and 

in good faith calculated to aid in litigating this action; (v) any deponent during 

his or her deposition in this case, provided that such disclosure is reasonably 

and in good faith calculated to aid in litigating this action; and (vi) court 

personnel, mediators, and court reporters. Any persons to whom disclosure is 

made shall be given a copy of this Order and advised of its terms. 

C. If any documents or files designated as confidential are submitted in 

Court, they shall be filed in sealed envelopes or other appropriate sealed 

containers on which shall be endorsed the title of this action, a brief 

description of the contents of each sealed envelope or other sealed container, 

and the following declarations: 

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This envelope [or container] contains confidential documents that were 

disclosed in the above-captioned case through discovery. It is not to be 

opened by any individual not authorized to access the information under 

the terms of the enclosed Agreed Protective Order. 

 

D. Information relating to images, reports, and conditions of patients other 

than William Arthur Smith found in the documents responsive to Plaintiff’s 

November 2013 discovery requests or on which the United States may rely for 

its defenses may be disclosed without the consent of the individuals to whom 

those records pertain so long as the United States makes the following 

redactions before disclosure to Plaintiff’s counsel: the first five digits of the 

patient’s social security number (last four may be revealed), the patient’s name 

(first and last initials may be revealed), and the month and day of birth (birth 

year may be revealed). 

E. Plaintiff’s counsel will notify the United States if he finds any 

documents that the United States has disclosed inadvertently without the 

redactions identified in this Order. The United States will then provide the 

redacted document and Plaintiff’s counsel agrees to destroy the respective 

unredacted document. The same process will apply if the United States 

otherwise finds out after production that it has inadvertently provided a 

document without the redactions identified in this Order. 

F. If confidential documents are used in deposition testimony, the 

documents and testimony about those documents shall not be revealed to 

anyone other than the individuals identified in paragraph (B) above. 

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G. If confidential documents, or information contained in the documents, 

are disclosed in any filing with the Clerk of Court, the documents, or 

information contained in the documents, shall be filed under seal and kept 

under seal by the Clerk until further order of the Court. 

H. The undersigned counsel for the Plaintiff and Defendant agree that all 

documents designated as subject to this Agreement, as well as every copy of 

said document, shall be returned to the U.S. Attorney’s Office for the Southern 

District of Ohio within 30 days of final disposition of this matter. In the 

alternative, counsel for Plaintiff may destroy those materials and provide 

written assurance of their destruction to the U.S. Attorney’s Office for the 

Southern District of Ohio, within 30 days of a final decision in this matter. 

I. Any party may make any objection to discovery permitted by the 

Federal Rules of Civil Procedure or any statute or other authority. 

J. The parties agree to this order without prejudice to the right of either 

party to request the Court to modify this Order for any specific document(s) 

after the United States produces the documents to Plaintiff’s counsel. 

K. Any allegations of abuse or violation of this Order shall be considered by 

the Court. If an allegation of abuse or violation of this Order is found, the 

Court may take disciplinary action against the appropriate parties including 

sanctions. 

/s/ Terence P. Kemp 

United States Magistrate Judge 

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Agreed to by: 

s/Daniel N. Abraham 

Daniel N. Abraham (0023457) 

Trial Attorney for Plaintiff 

 

s/John J. Stark 

John J. Stark (0076231) 

Assistant United States Attorney 

Trial Attorney for the United States 

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